Significance of the Union's history
33 The Union's history of prior contravention of the FW Act and its predecessors is a matter of some notoriety. The Union is a "serial offender" that has, over a long period, exhibited a willingness to contravene workplace laws in the service of its industrial objectives; and one that appears to treat the imposition of financial penalties in respect of those contraventions as little more than the cost of its preferred business model.
34 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235, Tracey J recorded the following observations about the Union's efforts to enforce a "no ticket, no start" philosophy at Australian building sites:
25 The CFMEU is a large, asset rich, and well-resourced industrial organisation. It has regularly been involved in litigation in which it has been found to have contravened provisions of the [Fair Work] Act, including ss 346 and 348, which attract pecuniary penalties. See the non-exhaustive summary of coercion-related decisions involving the CFMEU between 2010 and 2015 in Jessup J's judgment in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (the Webb Dock Case) [2017] FCA 62 at [67]. It may, therefore, be taken to be well aware of the constraints imposed upon it and its members by such provisions.
26 Despite this, it has persisted in its contravening conduct. The Commissioner has provided the Court with an analysis of such cases which demonstrates that, since about 2000, the CFMEU has been found to have breached pecuniary penalty provisions on more than 120 occasions.
27 The industry of the Commissioner has identified 15 cases, since 2000, in which the CFMEU and its officials have been found to have contravened the Act and its predecessors by engaging in misconduct with a view to maintaining "no ticket no start" regimes on building sites around the country. Penalties have been imposed by this Court, the Federal Magistrates Court and the Federal Circuit Court.
28 The present case falls into this pattern of repeated disregard for the law. To adopt the language of Mortimer J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [142]: the misconduct forms "part of a deliberate and calculated strategy by the CFMEU to engage in whatever action, and make whatever threats, it wishes, without regard to the law, and then, once a prosecution is brought, to seek to negotiate its way into a position in which the penalties for its actions can be tolerated as the price of doing its industrial business." See also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Children['s] Hospital Contraventions Case) [2017] FCA 491 at [83]-[90] (Barker J) and the authorities there cited.
35 The Commissioner provided a similar analysis in this case. What, in 2017, was 120 occasions is now in the vicinity of 150. There have been at least seven occasions on which the Union has been found to have contravened s 349 of the FW Act or its predecessor: Radisich v McDonald and Construction, Forestry, Mining and Energy Union [2012] FMCA 919 (Lucev FM); Radisich v Molina & Ors (No 2) [2011] FMCA 66 (Lucev FM); Stuart-Mahoney v Construction, Forestry, Mining and Energy Union & Anor (No 2) [2008] FMCA 1015 (Burchardt FM) (upheld on appeal in Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 (Ryan J)); Australian Building and Construction Commissioner v D'Arcy & Construction, Forestry, Mining and Energy Union [2019] FCCA 563 (Judge Egan); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) (2018) 358 ALR 725 (Tracey J); Australian Building and Construction Commissioner v Moses & Ors [2017] FCCA 2738 (Judge Jarrett); Australian Building and Construction Commissioner v Barker [2017] FCCA 1143 (Judge Jarrett).
36 Mr Pattinson is not in the same category. He has not previously been found to have contravened the FW Act or its predecessors. He has been a site delegate since at least 1997 and remains an officer of the Union. On any view, he is a senior participant in the Victorian construction arena. Regardless, the analysis that follows pertains primarily to the Agreed Contraventions of the Union.
37 The Commissioner submits that the Union's history should inform the court's assessment of the objective seriousness of its Agreed Contraventions. Because the Union has the history that it has, the Agreed Contraventions should, so the contention proceeds, be seen, objectively, to be very serious and deserving of an equally serious penalty. It submits that a penalty at or close to the maximum available would be appropriate.
38 The Union submits that its history of prior offending does not (or cannot properly) inform the nature of its conduct in the present case, nor otherwise inflate its seriousness or gravity; and so should not (or cannot properly) lead to the imposition of any penalty disproportionate to the instant contraventions. To put it another way: it maintains that the range within which the court might properly impose penalties in respect of the conduct that constitutes its Agreed Contraventions must be determined by reference to the nature, seriousness or gravity of that conduct, assessed in isolation from (and without reference to) the historical context against the backdrop of which the Union engaged in it. It is, so the contention proceeds, only once that range is identified that that historical context becomes relevant (in the sense that it informs where, within that range, an appropriate penalty lies).
39 In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 ("Broadway on Ann"; Tracey, Logan and Bromwich JJ), a full court of this court had occasion to consider the question that now confronts me. There, the court heard an appeal from a decision of the Federal Circuit Court of Australia (hereafter the "FCCA"), by which that court had imposed six maximum penalties against the Union in respect of multiple contraventions of s 500 of the FW Act. Tracey and Logan JJ, upholding (or, more accurately, reimposing) the penalties in question, both reasoned that the conduct constituting each of the contraventions, whilst primarily not itself at the most serious end of the proverbial spectrum, was nonetheless deserving of the maximum sanction because the Union's history of contravention of the FW Act was such that nothing less would have any prospect of deterring future contraventions.
40 In separate judgments, their Honours discussed the Union's history of statutory contravention and the inferences that arose from it, including that the Union "…has determined that its officials will not comply with the requirements of the FW Act with which it disagrees" ([23], Tracey J), that "…[t]he union simply regards itself as free to disobey the law" ([23], Tracey J) and that "in its internal governance, the CFMEU has been unable or unwilling to restrain aberrant behaviour within its Construction Division" ([84], Logan J, with whom Tracey J agreed).
41 It was, as both judges explained, at least in part because of that history that their Honours determined to accept that the maximum penalties that the FCCA had imposed were appropriate. Tracey J observed (at [27]) that the Union's history of contravening conduct (amongst other considerations) bespoke:
…deliberate abuse of [its] privileged position as a registered organisation in the Federal industrial relations system [and emphasised] the need for general and specific deterrence to weigh most heavily in the process of instinctive synthesis in which the Court engages when determining civil penalties.
42 Logan J (with whom Tracey J agreed) tackled head on the submission that the Union in this case advances: namely that, "…although prior contraventions are relevant and justify a heavier sentence than may otherwise be imposed, 'in the absence of statute, they cannot lead to the imposition of a penalty that is disproportionate to the gravity of the instant offence'." His Honour observed:
69 We are bound by Commonwealth v Director, FWBII to recognise and give effect to a civil penalty regime the purpose of which is ensuring compliance with norms of industrial behaviour prescribed by Parliament in the public interest. To view the conduct of the CFMEU on 10 February 2015 in isolation from the past and to penalise on the basis that there have been worse cases is to fail to recognise that the conduct is but a further manifestation of a lengthy and repeated pattern of unrepentant, outlaw behaviour by the CFMEU.
…
77 Once the contraventions on the day, deplorable in themselves, are viewed in context, they are, in my view, of the worst possible kind. Common sense, to say nothing of the maintenance of the rule of law, dictates that this must be so. Each contravention well warrants the maximum penalty. Laws which may be ignored at will on the basis of a persistent, self-arrogated, alternative standard of behaviour are no laws at all, only empty aspirational statements.
…
87 …So recalcitrant is the contravening conduct charged having regard to the past history…and such is the importance of deterrence and compelling conformity with the requirements of the [FW Act] my view is that only the most condign penalisation of a cumulative maximum punishment is warranted in the circumstances of this case. I would impose that so as to bring home emphatically to the CFMEU that, in its internal governance, it must force systemic behavioural change upon its Construction Division.
43 The third member of the court in Broadway on Ann, Bromwich J, dissented. There was, before me, some debate about whether he did so on the point of principle presently under consideration (namely, whether or not the nature, character or seriousness of contravening conduct should be assessed having regard to any history of similar conduct). Respectfully, I think that he did; although I acknowledge the divergence of views on that score, including (as will shortly be seen) in this court.
44 From the outset, Bromwich J identified (at [93]) five points of principle concerning the imposition of civil penalties that were of particular importance to that case, namely:
(1) While any prior contravention is a factor which may be taken into account in determining quantum, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant contravention.
(2) The maximum penalty available under statute must be reserved for the worst category of cases. However, this does not mean that a lesser penalty must be imposed because it is possible to envisage a worse case.
(3) The Federal Circuit Court and this Court should not, without giving the parties proper notice and an opportunity to be heard, disregard the submissions of the regulator and impose a penalty in excess of what the regulator seeks.
(4) While the formulation of the quantum of an appropriate penalty usually involves, in the final analysis, an "instinctive" synthesis of competing factors, the process leading to that synthesis is not instinctive.
(5) The outcomes arrived at by courts in prior cases can be used to help ensure reasonable consistency in the application of principle and as a yardstick for the determination of appropriate penalties.
45 As will be immediately apparent, it is the first of those five principles that is presently of interest. His Honour elaborated upon it thus (at [104]-[105] and [107]), referring in particular to the High Court's judgment in Veen v The Queen (No 2) (1988) 164 CLR 465 (hereafter, "Veen (No 2)"):
104 In ascertaining the metes and bounds of the regard that may be had by a court to prior contraventions, the seminal statement on this topic in Veen (No 2) at 477 may be adapted in a form that strips away irrelevant criminal law considerations, such that it reads as follows:
… the antecedent [contravening] history of [a contravener] is a factor which may be taken into account in determining the [penalty] to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant [contravention]. To do so would be to impose a fresh penalty for past [contraventions] … . The antecedent [contravening] history is relevant, however, to show whether the instant [contravention] is an uncharacteristic aberration or whether the [contravener] has manifested in his commission of the instant [contravention] a continuing attitude of disobedience of the law. In the latter case, … deterrence … may … indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent [contravening] history when it … shows a need to impose [a] condign [civil penalty] to deter the [contravener] and other [contraveners] from committing further [contraventions] of a like kind.
105 As the High Court's observations in Veen (No 2) illustrate, it is legitimate to take into account the antecedent contravening history of a contravener insofar as it may indicate that a condign civil penalty is necessary to deter the contravener and other potential contraveners from committing further contraventions of a like kind in the future. However, the penalty that is imposed must still be proportionate to the gravity of the instant contraventions, as assessed in their own terms, for to do otherwise would be to impose a fresh penalty for past contraventions.
…
107 The important principle identified in the passage from Veen (No 2) above is particularly relevant where there is, as in this case, a serious and sustained prior history of contraventions, and an apparent determination to continue engaging in proscribed conduct. The role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an "uncharacteristic aberration" or whether the contravener has, by the instant conduct, manifested "a continuing attitude of disobedience of the law". If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence indicates that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention.
46 Unlike Logan J (with whom Tracey J agreed), Bromwich J took the view that the Union's history of contravening conduct was "no more than a prism through which to view" particular contravening conduct and was not a circumstance that should inform the court's assessment of its seriousness (or nature or character or gravity) or its determination of the range within which a penalty should fall having regard to that assessment. It was in that sense that his Honour should, I think, be understood to have dissented not only in the result but also on that point of principle (about the significance of prior contravening conduct to the court's assessment of the nature, gravity, seriousness or character of particular contravening conduct).
47 Broadway on Ann was the subject of an unsuccessful application for special leave to appeal to the High Court: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] HCASL 380 (Gordon and Edelman JJ).
48 Three months after Broadway on Ann was decided, another full court had occasion to consider the same question. In that case - Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 (Allsop CJ, Collier and Rangiah JJ) - the court overturned a judgment of the FCCA, by which the appellants had been found to have engaged in adverse action and coercion in contravention of (respectively) ss 340 and 343 of the FW Act. The appeal succeeded on liability grounds, such that it was not strictly necessary for the court to address the issue of penalty. Nonetheless, it did so, observing (at 279-280 [176]):
…It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst category of cases. See the points of principle set out in the reasons of Bromwich J (dissenting in the result, but not in point of principle) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Broadway on Ann Case) [2018] FCAFC 126 at [93] and [102]-[110], and see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at [22].
49 I pause to note the reference there to the Broadway on Ann case and to Bromwich J having, therein, "dissent[ed] in the result, but not in point of principle". For the reasons that I have already stated, that is not the way that I read his Honour's reasoning in Broadway on Ann; but nothing turns on that and I needn't say anything more about it.
50 The question of what role a contravener's history of contravening conduct should play in the setting of a civil penalty arose once again in Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 ("Parker"; Besanko, Reeves and Bromwich JJ). There, the appellants had been found to have contravened various provisions of the FW Act, in respect of which penalties were imposed against them. They appealed, on both liability and penalty grounds. The former failed; but the latter partially succeeded. In particular, the court overturned the penalties that were imposed upon the two corporate appellants. One of them was the Union, whose history of statutory contravention has already been summarised, as it was in that case. At the trial stage, it was found to have committed (through its officers) 25 statutory contraventions, in respect of each of which it was ordered to pay the maximum available penalty. That was said to have been warranted partly on account of its long history of statutory contraventions.
51 On appeal, those penalties were reduced. Besanko and Bromwich JJ (with whom Reeves J agreed), discussing the High Court's decision in Veen (No 2), said as follows (at 508 [342]):
Veen (No 2) also provides valuable guidance as to the role of the maximum penalty. The High Court's observations at 478 make it clear that the maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed. This does not require characterisation as the worst possible case. However, a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction.
52 Later, their Honours held (at 510 [348]):
As the above discussion of Veen No 2 demonstrates, while the role of past conduct informs the need for deterrence, that cannot be used to change the character of the instant contravention.
53 I regret to confess some difficulty reconciling those passages. The first suggests that a contravener's "…history may assist in the proper characterisation of the instant contravention"; yet the second makes clear that that history "…cannot be used to change the character of the instant contravention". As counsel for the respondents urged that I should, I have understood the court to have found that it was not appropriate to take account of the contravener's history of similar conduct when assessing the character (or, by extension, the nature, gravity or seriousness) of particular contravening conduct. That conclusion aligns with what Bromwich J held in Broadway on Ann; but it is difficult - I think impossible - to reconcile with the approach that the majority took in that case. Broadway on Ann was not referred to in Parker, let alone disavowed. If my analysis of Parker is correct, then, there are recent and conflicting full court authorities as to the significance of prior contraventions. One (Broadway on Ann) was the subject of an unsuccessful special leave application; the other (Parker) is more recent and is consistent with powerful statements made in obiter by another full court (Auimatagi).
54 Thus were the battle lines in this case drawn.
55 There have been at least six single-judge penalty decisions of this court that have applied the reasoning adopted in Parker (and by Bromwich J, in dissent or not, in Broadway on Ann). In Australian Building and Construction Commissioner v Hassett [2019] FCA 855 ("Hassett"), O'Callaghan J considered what penalty ought to be imposed upon the Union in respect of contraventions of s 500 of the FW Act that were committed by two of its officers (for which it accepted that it was liable as an accessory). His Honour made the following observations:
52 I next deal with the applicant's submission that there is a difference of opinion to be discerned from some of the cases about the proper approach to the imposition of penalties, and the importance of long standing recidivism. Counsel for the applicant contended that the reasoning in two cases - The Bendigo Theatre Case at [73] and Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 (Tracey and Logan JJ, Bromwich J dissenting), especially at [13]-[27] and [66]-[69] - is to be read as more readily permitting the imposition of maximum penalties on an irrepressible offender, which thumbs its nose at the law, and regards the payment of such penalties as a cost of doing business, without offending the fundamental rule of sentencing that courts do not punish for past contraventions in respect of which a penalty has already been imposed.
53 In my view, those cases are not to be read that way. If I am wrong about that, then, in any event, I will follow those cases which form the preponderance of authority and, in my view, correctly state the principles governing the approach that courts take in going about the task of imposing appropriate penalties on recidivist offenders. For recent and authoritative explanations of the correct principles, see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 63, [154]- [156] (Jagot, Yates and Bromwich JJ); Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 280 IR 28 at 41, [22] (Allsop CJ, White and O'Callaghan JJ); Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2019) 363 ALR 246 at 279-280, [176] (Allsop CJ, Collier and Rangiah JJ); Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 at [339]-[342] (Besanko and Bromwich JJ, Reeves J agreeing).
54 In that regard, I will not repeat what I said in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1968 at [46]-[49] and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 468 at [44]-[47]).
56 Both of the authorities referred to at the end of the passage above were decided in the period between the Auimatagi and Parker decisions. Although, in Hassett, his Honour didn't see utility in repeating the observations that he made in those cases, there is utility in my setting them out here.
57 In the first of those authorities - Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1968 (hereafter, the "Springvale Rail Crossing Case") - his Honour was called upon to determine what penalties ought to be imposed in respect of contraventions of various provisions of the FW Act committed by (amongst others) the Union. The applicant, relying on Broadway on Ann, submitted that, "…when proper regard is had to the seriousness of the present contraventions in light of the [Union]'s approach to the law and penalties and having regard to the centrality of deterrence (both specific and general), each and every new contravention must be properly seen as sufficiently grave so as to warrant the maximum penalty available." His Honour addressed that submission in the following terms:
46 In my view, the question of the assessment of penalties is to be approached consistently with the joint judgment of the Full Court (comprised of the Chief Justice, White J and myself) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 (The Non-Indemnification Personal Payment Case) in particular at [22]…
47 To the extent that the submissions of the applicant suggested that the judgments of the majority in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 may be read to suggest otherwise, I respectfully disagree.
58 In Australian Building Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 468 (the "Prolac Case") - the second of the two authorities referred to in the passage from Hassett reproduced above (at [55]) - O'Callaghan J again was obliged to level a penalty against the Union, on that occasion for an admitted contravention of s 348 of the FW Act. Again, competing submissions were advanced as to the significance of the Union's history. His Honour addressed those submissions in the same way that he addressed them in the Springvale Rail Crossing Case.
59 With respect, I agree with his Honour that there is no conflict in principle that separates what the full court said at [22] of the Non-Indemnification Personal Payment Case (above, [28]) from what Tracey and Logan JJ decided in Broadway on Ann. However, to the extent that his Honour might be understood to have held that the former is authority for the proposition that the nature (or seriousness or character or gravity) of particular contravening conduct is not informed by the historical context against which it was embarked upon, I regret that I am unable to agree. The relevant proposition stated at [22] of the Non-Indemnification Personal Payment Case is simply that a person ought not to be penalised twice for the same contravening conduct. If that passage stands for some broader proposition that the nature (or seriousness or character or gravity) of contravening conduct cannot fairly be informed by a contravener's history, then it is not obviously reconcilable with what their Honours Tracey and Logan JJ decided in Broadway on Ann. Either way, it does not assist in navigating safe passage through what I regard as the conflict that separates Broadway on Ann and Parker.
60 Again with respect, I am also unable to agree that the views expressed by Tracey and Logan JJ in Broadway on Ann should not be read as "…more easily permitting the imposition of maximum penalties on an irrepressible offender, which thumbs its nose at the law…" In my view, that is the thrust of what their Honours decided.
61 I return, then, to the second of the six post-Parker authorities that have considered the question, namely Australian Building and Construction Commissioner v Powell [2019] FCA 972 ("Powell"). That (like Broadway on Ann and Hassett) was also a right of entry case. There, Bromberg J referred to "[t]hree Full Courts of this Court hav[ing] recently emphasised the importance of determining a penalty which is proportionate to the contravening conduct in the context of any need to take into account a contravener's prior contraventions." His Honour then, at [27]-[29], recited (as they are recited above) the key points of principle that emerge from each of the Non-Indemnification Personal Payment Case, Auimatagi and Parker. At [30], he distilled those propositions as follows (emphasis original):
The well settled principles most recently expressed in Parker call for a structured approach to the imposition of a penalty on a contravener with a history of contraventions, the object of which is to ensure that the contravener does not "suffer the fate of being sanctioned anew for past contraventions" (at [341]). First, the Court must identify the applicable range of penalties for that contravention without regard to the contravener's prior history of contraventions. Having done that, the Court should then take into account that history in assessing where, within the applicable range, the penalty should fall.
62 The third of the six relevant post-Parker decisions is Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 ("Laverton North"; Bromberg J). It was handed down on the same day as Powell. On the issue of present relevance, his Honour referred to and repeated the analysis that he recited in Powell (and which I have summarised above). His Honour did likewise in the last of the six relevant post-Parker decisions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Aldi and Altona North Case) (No 2) [2019] FCA 1667, [28] ("Altona North"; Bromberg J)
63 Respectfully, I agree with his Honour's analysis. If Parker represents the law as it presently stands on the question with which I am confronted - namely whether or not the nature, character, seriousness or gravity of particular conduct should be assessed in light of the historical context against the backdrop of which it was embarked upon - then the two-stage process to which Bromberg J in Powell adverted is the one that I must apply. For the reasons to which I will shortly come, however, I do not consider that that is the present state of the law.
64 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 ("Geelong Grammar") - the fourth of the six post-Parker decisions to which reference is made above - Mortimer J imposed penalties against the Union and one of its officials for another contravention of the FW Act's right of entry scheme. Her Honour made the following observations (at [39]-[40]):
39 …the term "recidivist" can appropriately be applied to the CFMMEU. However, the penalty imposed by the Court for the contraventions found to have occurred in this proceeding must be proportionate to the seriousness of that contravening conduct, without allowing the CFMMEU's recidivist record to affect that assessment of the seriousness of the conduct.
40. That said, as Besanko and Bromwich JJ recognise, the extensive record of contraventions of the CFMMEU is relevant to the weight to be given to deterrence in fixing an appropriate penalty…
65 None of Auimatagi, the Springvale Rail Crossing Case, the Prolac Case, Hassett, Parker, Powell, Laverton North, Altona North or Geelong Grammar contains any material analysis of what Tracey and Logan JJ said in Broadway on Ann. In saying so, I mean only to observe that each of those cases was decided contrary to what their Honours in Broadway on Ann held (but, of course, consistently with other, more recent full court authority). Neither of the two full court decisions (Auimatagi and Parker) explains how (or if) it was that Broadway on Ann was wrong (let alone plainly so).
66 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 ("Syme"; Wheelahan J) - the fifth of the six relevant post-Parker, single judge decisions referred to above - Wheelahan J took a slightly different view of Parker. Considering the significance of recidivism to the court's assessment of the nature or seriousness of an instant contravention, his Honour observed as follows (at [96]):
I accept the submission made on behalf of the CFMEU respondents that the prior record of a contravener does not permit the imposition of a penalty that is disproportionate to the offending conduct for which the penalty is to be imposed. But [Veen (No 2)], the reasons of Tracey J and Logan J in the Broadway on Ann case, and the reasons of the members of the Court in Parker support the idea that past contraventions may be relevant in assessing the seriousness of the instant contraventions. A history of contraventions may affect a number of features of the instant contraventions, including whether the instant contraventions are a manifestation of a continuing attitude of disobedience to the law. For this reason, and when all the background circumstances and other features of a contravention are considered, what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention…
67 With respect to his Honour, I read Parker in a more constraining way: namely, as authority for the proposition that, when assessing the character (or nature or gravity or seriousness) of particular contravening conduct, the court must not take account of the contravener's history of similar conduct (above, [53]). That is the interpretation of Parker that the respondents urge upon me. By supplementary written submissions, they suggest that "[n]othing in Parker supports the view articulated at [96] in [Syme] that past contraventions may be relevant to assessing the seriousness of the instant contravention." Respectfully and for the reasons outlined above (at [51]-[53]), that submission is a step too far. Nonetheless, I accept the broader submission as to the proposition for which Parker stands as authority. It stands, I think, consistently with the construction of Parker that Bromberg, Mortimer and O'Callaghan JJ favoured in the cases to which I have referred above (namely, Powell, Laverton North, Altona North, Geelong Grammar and Hassett).
68 If that is right, the court in the present case is left in a difficult situation. Both sides acknowledge - I think properly - that Mr Pattinson's (and, by process of attribution, the Union's) conduct, judged independently of its context, was not at the upper end of the proverbial scale of seriousness. The Union says that, that being so, the court must fashion a penalty that aligns with that objective, contextually-independent assessment of the contravening conduct's seriousness; and that regard must not be had to its history so as to impose a penalty that would be appropriate for something objectively more serious (or that is otherwise disproportionate to what occurred). The Commissioner, by contrast, says that the conduct cannot fairly be divorced from its context; and that the Union's history of contravening conduct is a circumstance that places the contraventions in this case at the upper end of that scale of seriousness.
69 I say again: if my analysis of Parker is correct, then the court is left in a difficult situation. Whichever of the competing contentions I decide to follow, there will be full court authority that says that I'm wrong. I have, it seems to me, little option but to consider for myself which of the two competing analyses is to be preferred. For the reasons stated below, I favour - and, in this case, will apply - the reasoning of the majority in Broadway on Ann. Had the full court, in Parker, expressly impugned that reasoning as wrong (or plainly wrong), then I would have followed that latter reasoning instead, despite respectfully adhering to the view that it is wrong. However, as the reasoning of the majority in Broadway on Ann has not been so impugned - and represents, I think, a correct statement of the relevant law - I consider myself bound to apply it.
70 In doing so, I should attempt at least some defence of what the majority in Broadway on Ann held; and, by extension, some explanation for why I would respectfully prefer it over the competing analyses in the authorities to which I have referred above (including Auimatagi and Parker, as I have construed it).
71 Civil penalties have only one objective: deterrence. The court is charged, simply enough, with fashioning a penalty that serves to deter, both generally and specifically, the conduct in respect of which it is levelled.
72 If the only way to deter even the most objectively inoffensive conduct (so assessed without reference to historical context) is to impose a penalty at or approaching the maximum amount available, then the imposition of anything less would necessarily result in a failure to achieve the only object to which the imposition of civil penalties is directed. That acknowledged, it is not apparent to me how a civil penalty that is fashioned at (and not beyond) a level that is necessary in order to deter the repetition of particular conduct might ever be impugned as disproportionate to its nature or gravity (or seriousness or character). To phrase that proposition as a question: how can a penalty be disproportionate to the nature or gravity of the conduct in respect of which it is imposed if it is no more than what is necessary to achieve the only objective that its imposition is meant to achieve?
73 In NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285, Burchett and Kiefel JJ (with whom, on this issue, Carr J agreed) said (at 293):
…insistence upon the deterrent quality of a penalty should be balanced by insistence that it "not be so high as to be oppressive". Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression.
74 In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 (Jessup J), the court observed (at [8]):
If contravention of a law is visited with penal outcomes which are demonstrably inadequate to achieve the purpose of the law, it might as well not be a law at all. It is in this sense, in my view, that the principle of proportionality is amply reflected in the imposition of a penalty which takes due account of the importance of specific deterrence.
75 To speak, then, of a penalty that is disproportionate to the seriousness, nature, character or gravity of particular contravening conduct is, I think, to speak merely of a penalty that is more than what the deterrence of its repetition warrants. It is that central objective - deterrence - that remains supreme.
76 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 (Tracey J) - a decision published on the same day as the decision in Broadway on Ann - the court explored the application of the criminal law concept of proportionality to the imposition of civil penalties. Tracey J observed (at [18]-[20]):
18 Another criminal sentencing provision which is of limited ongoing relevance in the civil context is the principle that "the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is proscribed": see Veen v The Queen [No 2] (1988) 164 CLR 465 at 478 (Mason CJ, Brennan, Dawson and Toohey JJ). In R v Kilic (2016) 259 CLR 256 at 266; [2016] HCA 48 at [20] (Bell, Gageler, Keane, Nettle and Gordon JJ), the High Court said that the use of the expression "the worst category" of an offence is apt to mislead. It cautioned that "sentencing judges should avoid using the expression 'worst category' and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty." A case may fall within this category even if it is possible to imagine an even worse incident of the offending.
19 There are difficulties in translating this principle to the civil realm. It concentrates on the gravity of a particular criminal act and seeks to compare that act with other criminal acts.
20 Given the emphasis on deterrence in the civil regime, the maximum penalty may be appropriate for a person who has repeatedly contravened the same or similar legislative provisions despite having been penalised regularly over a period of time for such misconduct. The gravity of the offending, in such cases, is to be assessed by reference to the nature and the quality of the recidivism rather than by comparison of individual instances of offending: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [8] (Jessup J). Relevant matters will include the number of contraventions which have occurred over a period, whether the ongoing misconduct is the result of conscious decisions, whether the repeated contravenor has treated the payment of penalties as a cost of doing business and whether any attempt has been made to comply with the law as declared by the Court.
77 I respectfully adopt his Honour's reasoning.
78 As can be seen from the analysis above, the authorities relevant to the present question place considerable emphasis upon the decision of the High Court in Veen (No 2). The facts of that case warrant examination. Mr Veen was a brain damaged homosexual prostitute who had a history of violent offending when affected by alcohol. In 1975, he stabbed a client to death and was convicted of his manslaughter (he was charged with his murder but a jury convicted him of the lesser crime on the ground of diminished responsibility). He was sentenced to life in prison, which the High Court, by majority (Stephen, Jacobs and Murphy JJ), later reduced to 12 years: Veen v The Queen (1979) 143 CLR 458 ("Veen (No 1)"). A short time after his release from prison, he killed another sexual partner and was again charged with murder. The Crown accepted his plea of guilty to manslaughter, again on the grounds of diminished responsibility. He was again sentenced to life imprisonment, which he again appealed (including by special leave to the High Court). The High Court, by majority (Mason CJ, Brennan, Dawson and Toohey JJ), on that occasion upheld his life sentence.
79 En route to doing so, the majority in Veen (No 2) had occasion to consider what it referred to as the "principle of proportionality" - that is, the notion that "…a sentence should be 'proportionate to the gravity of the offence' unless, perhaps, the applicant's history warrants some departure from the principle": Veen (No 2), 472 (Mason CJ, Brennan, Dawson and Toohey JJ - citing Veen (No 1), 490 (Jacobs J)). That principle was described as "firmly established in this country": Veen (No 2), 472 (Mason CJ, Brennan, Dawson and Toohey JJ). At 473, the majority explained:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
80 Later, their Honours described the following passage from the judgment of Mason J in Veen (No 1) as "an accurate statement of the law" (Veen (No 2), 475 (Mason CJ, Brennan, Dawson and Toohey JJ)):
…there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred.
[Veen (No 1), 369 (Mason J)]
81 Later still, their Honours settled upon the passage recited within many of the cases that are analysed above, which I replicate with my own emphases (Veen (No 2), 477 (Mason CJ, Brennan, Dawson and Toohey JJ)):
…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
82 With respect to those who take a different view (if, indeed, that is what occurred in cases such as Parker and others), I do not discern from that passage any prohibition upon the court's taking account of relevant historical context when assessing the gravity (or seriousness or nature or character) of a particular offence. To assess the gravity of an instant offence by reference to a respondent's history of similar offending is not, by itself, to impose a fresh penalty for past offences. Nor does it, without more, involve or lead to the shaping of a penalty that is relevantly disproportionate. It merely informs what is proportionate; that is to say, how serious or grave the instant contravention is. The very circumstances of Mr Veen's case illustrate the proposition: despite the similarities in his two manslaughter convictions (and despite having pleaded guilty to the latter of them), he was sentenced to 12 years' prison for the first and life in prison for the other. The life sentence that was considered disproportionate in respect of the first conviction was permissible in respect of the second.